Opinion
No. 05-11-00554-CR
07-05-2012
LINDSEY TAYLOR NICKENS, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM; Opinion issued July 5, 2012
On Appeal from the 194th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F09-62061-M
OPINION
Before Justices Morris, Moseley, and Myers
Opinion By Justice Morris
After the trial court denied Lindsey Taylor Nickens's motion to suppress, a jury found her guilty of possession of methamphetamine with intent to deliver. She complains on appeal that the evidence against her is legally insufficient to support her conviction and the trial court erred in denying her motion to suppress. We affirm the trial court's judgment.
Factual Background
Dallas police officer Tung Nguyen and a rookie he was training were dispatched to appellant's apartment for a noise complaint. Although they heard no loud music when they got to the apartment, they proceeded to knock so they could give the people inside a verbal warning. A woman answered the door. When asked if she lived at the apartment, she said no and pointed to appellant sleeping on a nearby couch. She stated that appellant was the owner, let the officers inside, and then left.
The officers woke appellant, who denied being the owner of the apartment. At the same time, the officers heard a lot of noise upstairs. They asked appellant to request the other people at the residence to come downstairs, but she refused. Nguyen then ordered all the people upstairs to come downstairs to be identified. Five people eventually came downstairs, and all denied living in the apartment. After collecting identification from the people inside, the officers ran warrant checks and discovered that there were active warrants for appellant and two of the men. The officers let the people without outstanding warrants go home. They detained and handcuffed appellant and the two men.
Around the same time, when Nguyen discovered that there were six people in the apartment, he called for backup officers. Because no one in the apartment had admitted to living in the apartment, he was concerned that the people there could have been involved in criminal trespass or burglary. When the backup officers arrived, they did a “protective sweep” of the apartment to ensure no one else was there who could jeopardize their safety. The officers did not find other suspects or contraband at that time.
Justin Bernil, one of the backup officers, told Nguyen that the location was the focus of an ongoing narcotics investigation. Appellant's handcuffs were then removed, and Bernil told appellant that the narcotics department had been doing surveillance on the apartment and that there had been complaints from the neighbors. He asked appellant for her consent to search the apartment. Appellant gave her consent in writing, and Bernil and Nguyen conducted the search. Upstairs, Nguyen found two plastic baggies containing a clear white substance hidden between a mattress and box springs in one of the two bedrooms. The bedroom appeared to belong to Leroy Barfield, one of the men who had been detained for an outstanding arrest warrant. There was men's clothing in the closet and an adjoining bathroom contained prescription pills with his name on them. The substance taken from the bed preliminarily tested as methamphetamine. At that point, the officers contacted the narcotics department to get a search warrant issued by a judge.
When narcotics officers got to the apartment with a warrant, the assembled officers searched the entire apartment. A safe was discovered in Barfield's closet. Inside, the officers found Barfield's wallet, a water “bong,” a pipe, a butane torch for smoking methamphetamine, two scales, packaging baggies, and more methamphetamine. On top of the safe, officers found a notebook that appeared to be a ledger for recording drug sales. Also in the closet, officers found what appeared to be a receiver for digital surveillance cameras, although it was not connected. The total weight of the methamphetamine taken from the apartment was 23.5 grams, nearly one ounce. The monetary value of an ounce of methamphetamine was between $1,200 and $1,700.
In a videotaped interview with police, appellant admitted her name was on the apartment's lease. She initially stated that she was unaware there was methamphetamine being sold in the apartment and claimed Barfield only stayed at the apartment “sometimes.” She later admitted, however, that she smoked methamphetamine that she got from Barfield and was aware of what Barfield was doing in the apartment. She admitted she sometimes opened the door for people who came to the apartment. She stated, “. . . I'm not stupid.” She acknowledged that her fingerprints could be found on the water bong and that a lay person who saw the contents of the safe would know what was going on in the apartment. She claimed she did not know anything about “numbers and amounts.”
A police narcotics expert testified that a large amount of drugs, packaging bags, scales, and the presence of a drug ledger indicate that a possessor of drugs is intending to deliver them. He explained that some people in a drug dealing operation will do a job for the dealer just to be paid in the drug that is being sold.
Discussion
In her first two issues, appellant challenges the legal sufficiency of the evidence supporting her conviction for possession, with intent to deliver, of methamphetamine. She claims she was not affirmatively linked to the drugs in the apartment, she had no legal knowledge of the drugs, a material variance exists between the indictment and the evidence presented at trial, and the State failed to show she delivered drugs.
In reviewing the legal sufficiency of the evidence, we must assess all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. See Poindexter v. State, 153 S.W. 3d 402, 405 (Tex. Crim. App. 2005). To prove unlawful possession of a controlled substance, the State must prove the accused exercised control, management, or care over the substance and the accused knew the substance was contraband. To do so, the State must establish, through direct or circumstantial evidence, to the requisite level of confidence, that the accused's connection with the substance was more than just fortuitous. This is all there is to the so-called “affirmative links” rule. Id. at 405-06. Moreover, the jury in appellant's case was instructed on the law of parties. Under the law of parties, a person is criminally responsible for an offense committed by the conduct of another if, acting with intent to promote or assist the commission of the offense, she solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense. See Tex. Penal Code Ann. § 7.02(a)(2) (West 2011).
We note initially that the State was not required to prove in appellant's case that she delivered the methamphetamine, but merely that she possessed it with intent to deliver it. See Lopez v. State, 108 S.W.3d 293, 299 (Tex. Crim. App. 2003). Accordingly, appellant's arguments based on that line of reasoning are without merit.
The evidence in appellant's case showed she admitted to living in a two-bedroom apartment that contained nearly one ounce of methamphetamine - in addition to scales, pipes, baggies for packaging, and a receiver that could be used for camera surveillance. Rather than admit she lived in the apartment, she initially denied the fact to police. She later admitted she lived in the apartment, she used methamphetamine she obtained from Barfield, and she was aware that Barfield was selling drugs in the apartment. She further admitted that it was her name on the apartment lease. She acknowledged that her fingerprints could probably be found on the bong that had been locked away in Barfield's safe. She admitted that she was not “stupid” and let people into the apartment for Barfield on occasion. Viewing all the evidence in the light most favorable to the verdict, we conclude the jury could reasonably have found appellant acted as a party to Barfield's possession of methamphetamine, with intent to deliver. We resolve her first two issues against her.
In her third issue appellant complains the trial court erred in denying her motion to suppress. She specifically contends the search began the instant the police illegally entered her apartment, no circumstances justified a search once the police had entered, the person who permitted the police to enter had no authority to consent to an entry or a search, and appellant's later consent to search was not voluntary. The trial court held a hearing on appellant's motion to suppress based on her complaint that the woman who permitted the police to enter the apartment had no authority to consent to their entry and appellant's assertion that she had not voluntarily consented to the later search of the apartment. Contrary to her assertion, Bernil denied telling appellant that she would not have to go to the jail for the warrants if she agreed to the search. The trial court found that appellant voluntarily agreed to the search. After researching whether the initial entry was illegal, the trial court apparently also found against appellant on that issue, denying the motion to suppress.
We apply a bifurcated standard of review when reviewing a trial court's ruling on a motion to suppress. We give almost total deference to the trial court's determination of historical facts and review de novo the court's application of the law of search and seizure. See Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000).
Here, the police were permitted to enter appellant's residence by a woman who explicitly told the officers that she did not live in the apartment and immediately left the scene. An unconsented police entry into a home constitutes a search under Katz v. United States, 389 U.S. 347 (1967). McNairy v. State, 835 S.W.2d 101, 106 (Tex. Crim. App. 1991). Accordingly, we must first determine whether the woman possessed any authority to consent to the entry.
A third party may consent to a search to the detriment of another's privacy interest if the third party has actual or apparent authority over the place to be searched. See Hubert v. State, 312 S.W.3d 554, 560-61 (Tex. Crim. App. 2010). The third party, may, in her own right, give valid consent when she and the absent, non-consenting person share common authority over the premises. Common authority is shown by mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit a search in her own right and that the others have assumed the risk that one of their number might permit the common area to be searched. See id.
Alternatively, when an officer reasonably, though erroneously, believes that a third party purporting to give consent has actual authority over the place to be searched, apparent authority exists and the purported consent can serve to make the search reasonable. The State, however, has the burden to show that the person who consented had apparent authority. See id. The burden is not met if the officers, faced with an ambiguous situation, nevertheless proceed without making further inquiry. If the officers do not learn enough and the circumstances fail to clarify whether the property is subject to common authority by the consent-giver, then the warrantless search is unlawful. Whisenhunt v. State, 122 SW.3d 295, 299 (Tex. Crim. App. 2003).
In appellant's case, testimony at the motion to suppress hearing showed that the woman who allowed the police inside appellant's apartment did so while remarking that she did not live in the apartment and that the actual “owner” was sleeping on the couch nearby. She next stated, “I live on complex. I'm going home anyways.” Without any further questioning from police, the woman left. These facts do not show that the woman had actual or apparent authority to consent to the police entry into appellant's home. We must therefore further determine whether the unlawful entry tainted appellant's consent to search the apartment.
The court of criminal appeals has previously indicated that when consent follows an illegal entry onto a defendant's property, the consent can be analyzed using the factors set out in Brick v. State, 738 S.W.2d 676 (Tex. Crim. App. 1987), to determine whether the consent was tainted by the illegal police conduct. Beaver v. State, 106 S.W.3d 243, 250 (Tex. App.-Houston [1st Dist.] 2003, pet. ref'd). We will therefore apply the Brick factors, although that case involved an illegal arrest rather than an illegal entry. We consider (1) the proximity of the consent to the illegal entry; (2) whether the illegal entry brought about observation of the particular object for which police sought consent to search, or, in other words, whether the illegal entry allowed officers to view the area or contraband that the officers later received consent to search; (3) whether the illegal entry was flagrant police misconduct; (4) whether the consent was volunteered rather than requested by the officers; (5) whether the defendant was made fully aware of the fact that she could decline to consent and, thus, prevent an immediate search; and (6) whether the police purpose underlying the illegality was to obtain the consent. See id. The record does not reveal how much time passed between the initial police entry into the apartment and appellant's signing the written consent to search. The record does show, however, that in the intervening time a number of things occurred: the people upstairs were ordered to come down and give their identification; appellant and two others were detained for warrant problems; the other three people who had been in the apartment were sent home; Bernil and the other backup officer were called to the scene and arrived; and the officers performed a protective sweep of the apartment. Also, Bernil was able to explain to appellant the current status of her apartment as a suspected drug house. Even though some time must have passed and a number of things occurred before Bernil asked for her consent, thus possibly giving appellant the opportunity to fully comprehend the situation, appellant nonetheless remained in the same place and in the presence of at least two of the same officers during the entire episode, which the record indicates occurred late at night. We conclude therefore that this factor favors neither the State nor appellant.
It is clear the officers did not see any evidence of illegal drug possession or dealing when they entered appellant's apartment, nor did the first two officers have any idea that such activity was suspected. Thus, this second Brick factor favors the State. And courts usually do not deem police conduct as “flagrant” unless the illegal conduct was engaged in for the purpose of obtaining consent or the police misconduct was calculated to cause surprise or fear. See Cooksey v. State, 350 S.W.3d 177, 188 (Tex. App.-San Antonio 2011, no pet.). Because nothing in the record supports a finding of flagrant police misconduct, the third factor also favors the State.
The fourth factor, however, favors appellant. There is nothing in the record to suggest that appellant volunteered her consent to the search, rather than acceded to consent to it. The fifth Brick factor relates to whether appellant was made fully aware that she could decline to consent. Although the reporter's record is silent on this matter, the signed consent form states that appellant authorized the search “having been told of my right to refuse such a search.” The fifth factor thus favors the State. The sixth factor also favors the State. The record shows the police purpose underlying the illegal entry was not to obtain appellant's consent to a search of her apartment for evidence of drug possession because Nguyen was unaware of the ongoing narcotics investigation and entered the apartment simply to issue a noise warning.
We conclude any taint from the illegal entry was sufficiently attenuated by the time Bernil obtained appellant's consent to search her apartment. See Reasor v. State, 12 S.W.3d 813, 818 (Tex. Crim. App. 2000). Accordingly, even if the trial court erred in determining that the initial entry into the apartment was legal, the court was nevertheless correct in denying appellant's motion to suppress. See Hull v. State, 172 S.W.3d 186, 189 (Tex. App.-Dallas 2005, pet. ref'd) (stating we uphold trial court's ruling on admission of evidence if it was correct under any theory reasonably supported by the evidence and applicable to the case). We resolve appellant's third issue against her.
We affirm the trial court's judgment.
JOSEPH B. MORRIS
JUSTICE
Do Not Publish
Tex. R. App. P. 47
110554F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
LINDSEY TAYLOR NICKENS, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-11-00554-CR
Appeal from the 194th Judicial District Court of Dallas County, Texas. (Tr.Ct.No. F09- 62061-M).
Opinion delivered by Justice Morris, Justices Moseley and Myers participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered July 5, 2012.
JOSEPH B. MORRIS
JUSTICE